The CJEU’s V.M.A. Ruling: Recognition & Registration of Same-Sex Parentage in Cross-Border Relations
Mili Gupta
Introduction
The Court of Justice for the European Union [CJEU] in the case of V.M.A. v. Stolichna Obshtina, Rayon ‘Pancharevo’ [the ‘VMA’ case], concluded that EU Member States must acknowledge, for the purpose of EU free movement law, family bonds developed in another EU Member State between a child and their same-sex parents. The CJEU has entered into unknown terrain with this decision: while it has previously heard cases concerning same-sex couples [e.g. – Coman, Romer, Hay, Maruko, & Parris], this is the first instance in which it has been called to adjudicate on the contentious issue of same-sex parenthood.
Factual Background
V.M.A., a Bulgarian woman, and K.D.K., a British woman, were married since 2015 and had been residing together in Spain. S.D.K.A, the couple’s daughter, was born in December 2019 in Spain, where she lived with her mothers following her birth and received a Spanish birth certificate, which listed V.M.A. & K.D.K. as her mothers. V.M.A., her Bulgarian parent, also requested a birth certificate for the child from Bulgaria, which was required for the issuance of a Bulgarian identity document. The failure to obtain a Bulgarian birth certificate would not have prejudiced the child’s ability to claim Bulgarian nationality but would have made it more complicated for a Bulgarian identification document to be issued.
The Bulgarian officials responded by ordering V.M.A. to submit proof of parentage of the child, so as to determine the child’s biological mother. After she declined to provide the necessary information, the Bulgarian officials rejected V.M.A.’s application. V.M.A. challenged the refusal before the Administrative Court of Sofia, which made a reference to the CJEU for a preliminary ruling, asking whether Bulgaria’s refusal to issue a birth certificate for S.D.K.A. violated Articles 20 & 21 of the Treaty for Functioning of the EU (‘TFEU’), along with a number of other provisions of the EU Charter of Fundamental Rights.
Summary of the Judgement
The CJEU began its analysis by deducing that S.D.K.A. is a Bulgarian citizen by birth [as one of her mother’s is a Bulgarian national] and hence an EU citizen [para 39]. Consequently, Bulgaria must provide S.D.K.A. an identification card or passport specifying her nationality and surname as it occurs on her Spanish birth certificate pursuant to Article 4 [3] of Directive 2004/38 [para 44]. The CJEU further emphasized that Article 4 [3] compels the Bulgarian officials to give an identification card or passport to the child, irrespective of whether a new birth certificate is issued for the child by the Bulgarian officials [para 45].
The CJEU clarified that, based on the circumstances of the matter, the Spanish officials had legitimately established the existence of a parent-child relationship between S.D.K.A. and her 2 mothers, which was certified by her birth certificate [para 48]. As a consequence, “V.M.A. and K.D.K. must, pertaining to Article 21 TFEU & Directive 2004/38, as parents of a Union citizen who is a minor and of whom they are the foremost caretakers, be acknowledged by all Member States as possessing the right to accompany that child when her right to travel and settle liberally within the jurisdiction of the Members States is being practiced” [para 48]. Denying this right may constitute an impediment to the free movement rights pursuant to Article 21 TFEU [para 48].
The CJEU then assessed whether the Bulgarian officials could justify their refusal on public policy grounds or the necessity to safeguard the national identity of Bulgaria. The CJEU stressed the responsibility of a Member State to provide an identification document to a child and to acknowledge the parent-child relationship in order to enable that child to exercise their freedom of movement “does not diminish the national identity or present a risk to the public policy of the concerned Member State” [para 56].
The CJEU further stated that Member States can adopt measures obstructing the free movement of persons to the extent that such measures do not violate the EU Charter of Fundamental Rights [para 58]. In the context of this assessment, it highlighted the applicability of Articles 7 and 24 of the Charter [para 59], which express the right of respect for family life and the protection of the rights of the child [para 61-62]. Furthermore, the CJEU stated that Article 7 must be read in connection with Article 24 of the Charter [para 63]. The CJEU further held that depriving the child of her relationship with one of her parents while practicing her right to travel & settle liberally within the jurisdiction of the Member States, or making her exercise of that right exceedingly complicated or impossible because her parents are a same-sex couples, would be in violation of Articles 7 and 24 of the Charter [para 65].
The CJEU finally stated that, even if S.D.K.A. is not a Bulgarian national and so does not have free movement rights under EU law, she should be deemed a “Direct Descendent” of V.M.A., who is a Union citizen, hence a “family member” of V.M.A. for the purpose of exercising her free movement rights. The CJEU, therefore, expressed that the word “Direct Descendant” as defined by Article 2 [2[[c] of Directive 2004/38 must be read to include all children of Union citizens, along with joint offspring with another person of the same sex [para 67-68].
Commentary
The decision is significant because it clarifies that the ideal of mutual recognition extends to birth certificates granted by the EU Member States, particularly when they designate two people of the same sex as the parents of the child. This is extremely crucial for LGBTQ families because a substantial number of Member States reject parenthood for same sex-couples. The decision of the CJEU ensures that children of same-sex couples holding the citizenship of a EU Member State can travel freely across the EU with both of their parents.
Furthermore, LGBTQ Union citizens married to a person of the same sex can travel to and enter another EU Member State not only with their partner [as was established in Coman], but also their offspring [confirmed in V.M.A.]. This conveys a clear message to every EU Member State: LGBTQ families cannot be divided while exercising their free movement rights.
This decision is especially significant because it entails that the failure to recognize a parent-child relationship in cases concerning the application of EU free movement law might constitute a violation of basic rights guaranteed by the Convention on Rights of the Child (‘CRC’) & the Charter. More importantly, the CJEU appears to accept in this judgment that that children of same-sex couples cannot be deprived of rights that children whose parents are of the opposite sex instead benefit from; and that such a dissimilar treatment entails discrimination on the basis of sexual orientation.
Regardless of the fact that the CJEU has not gone into great detail on this point, V.M.A is a significant judgment in that it [correctly] acknowledges that children of LGBTQ families are in the same situation as children from other families and that they should therefore be treated equally. Moreover, the judgment is significant in that it established that LGBTQ families are “families” under EU law, thus indicating that the concept of “family” is becoming more varied, inclusive, and is no more limited to the conventional family unit.
The judgment nonetheless leaves open a number of questions by virtue of its cross-border approach, relating specifically to family units who do not come within the purview of EU law and are thus unprotected. Such situations remain completely dependent on the decisions made by the Member State in which they reside – to the extent that the European Convention on Human Rights [ECHR] does not apply. Several cases are now pending before the ECtHR concerning the issuing of birth certificates that mention two parents of the same sex [R.F. & Ors. vs Germany; S.W. & Ors. vs Austria] or the cross-border validation of all such birth certificates [A.D.-K vs Poland]. Nevertheless, the ECtHR’s overly careful outlook in its latest judgment in S.H vs Poland leaves doubts as to the likelihood of further developments in this direction. The judgment concerned the cross-border acknowledgment of the parent-child relationship in a situation involving a same-sex male couple who became parents via surrogacy.
Furthermore, the V.M.A judgment leaves out other questions, such as what happens in circumstances where the birth certificate which acknowledges two people of the same- sex as joint parents was not provided by an EU Member State. Would the requirement of mutual recognition established in this decision also be applicable to birth certificates [or other documents, such as court decisions] granted by non-EU Member States? Will it matter if those documents, while issued in a third nation, have already been acknowledged by an EU Member State, if not? This explanation of this topic will be particularly relevant for male same- sex couples relying on surrogacy in non-EU countries, where their shared parental position is also recognized.
Another point that the ruling does not address is the scope of the requirement of mutual recognition that it imposes. Is it solely for the intent of providing family reunification rights [i.e. allowing all family members entry into a Member State], as was the case in Coman? Or does the responsibility go even further, requiring all EU Member States to acknowledge the family links between members of LGBTQ families having entered a Member State?
The CJEU emphasized in its decision that what is needed is for all Member States to recognize the parent-child relationship for the purpose “of allowing S.D.K.A. (....) to practice without interruption, with each of her two parents, her right to travel and settle freely within the jurisdiction of the Member States’ [para 49]; and also that the mothers must ‘as parents of a Union citizen who is a minor and of whom they are foremost caretakers’ be identified by all Member States as possessing the right to accompany that child [para 48]. These paragraphs can be interpreted in two ways:
A narrow interpretation, in which the main goal of the CJEU is to guarantee that the family can travel across the EU Member States. As per this interpretation, the CJEU just intends to assure the right to entry of LGBTQ families to the other EU Member State; or
A wider interpretation [para 47], according to which ‘the rights which nationals of Member States enjoy under Article 21 [1] TFEU also include right to lead a nominal family living, together with their family members, both within their host Member State and in the Member State of which they are nationals when they come back to the jurisdiction of that Member State’. Even though leading a ‘nominal family living’ would undoubtedly necessitate all persons of an LGBTQ family moving together and being admitted into the Member State of the desired location, this would be sufficient: leading a ‘nominal family life’ necessitates that the family identifies as a family for all lawful reasons once its members have entered [together] another Member State.
In the coming years, legislation may give a whole or partial answer to the challenges experienced by LGBTQ families in a cross-border situation. The Commission is indeed now working on a draft proposal for a legal framework to facilitate cross-border identification of parenting across the EU Member States, which would also extend to the LGBTQ families (the LGBTIQ Equality Strategy 2020-25).
Conclusion
The CJEU judgment in the current V.M.A. case is a welcome step towards the complete recognition of LGBTQ families in Europe. The judgment recognized that the principle of mutual recognition extends to birth certificates granted by the EU Member States, even when they recognize two people of same-sex as the parents of the child. This conveys a clear message to every EU Member States that LGBTQ families cannot under any conditions be parted when they cross an EU border. The CJEU further clarified that the non-recognition of the parent-child relationship in circumstances concerning the exercise of EU free movement rights can constitute a violation of the fundamental rights under the CRC & the Charter.
Despite this, several ambiguities and gaps exist following the decision of the CJEU. LGBTQ families whose circumstances do not come within the ambit of EU legislation are not entitled to the protection that EU law provides. As a result, the state in which they reside may continue to deny the recognition of family connections formed in other nations. The judgment also leaves it unclear for what purposes the familial relationships between the members of LGBTQ families who enjoy free movement rights must be identified [i.e. if it is solely for family reunion reasons or all lawful reasons]. Several of the ambiguities may be answered shortly either legislatively [if the upcoming proposal of the Commission is accepted by the EU legislature] or judicially.
Author:
Mili Gupta has completed her LL.M from Institute of Law, Nirma University. Her broad research interests are constitutional law, comparative human rights law, anti-discrimination law, gender law and international humanitarian law. She can be reached at miligupta.mish@gmail.com.